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Legal analysis: Mask mandates in New York schools

What happens in schools if the statewide mask mandate goes away and the Erie County one remains? 2 On Your Side spoke with two local attorneys about that.

BUFFALO, N.Y. — As the legal battle over the statewide mask mandate plays out in court later this week, we are looking ahead at how that decision could impact education.

For now, the mask mandate remains in place and that includes wearing masks in schools. The New York State Education Department and school districts here have been clear about that. And, there's a separate county-wide mask mandate in Erie County. 

But what happens in schools if the statewide mandate goes away and the Erie County one remains?

2 On Your Side spoke with two Western New York attorneys about that on Wednesday to get their takes.

"If the county executive says I'm going to use my emergency powers and impose a mask requirement, then they would have to follow that unless a court invalidated that by saying, for example, there's no reason for emergency powers, you know, there isn't factual circumstances which justify them,"  attorney Paul Cambria said.

"They might also take the position a court, the same as happened with the supreme court and the court downstate, and say that that's a legislative move and it's not something that should be done by an administrative person."

Added attorney Barry Covert: "If the court does lift the stay, then the New York State Department of Health mask mandate is no longer enforceable, and we will be left with Erie County's mask mandate. The decision by the Nassau County Supreme Court does not affect Erie County's mask mandate, so if you are going to an indoor public facility, or a school for example in Erie County, then you will have to abide by the county mask mandate."

Covert says if the statewide mask mandate goes away, and you're in a county without a mask mandate, then you wouldn't have to wear a mask in school unless the NYS Education Department does its own mask mandate for public schools or your school district does one. And then, both attorneys say more legal battles could pop up.

"I would expect that until the underlying appeal is resolved, and likely on an expedited basis, the stay will remain. But if the court does lift it on Friday in Erie County you're still going to have to abide by the indoor mask mandate which includes at schools, but outside of Erie County, there's not going to be an indoor mask mandate other than maybe at schools if the state department of education tries to claim that they have the authority to implement a statewide mask mandate," Covert said.

Added Cambria: "It's not exactly like a private employer who could, you know, say look this is the way it is. You wear a mask or you're vaccinated or you don't work for me. When it's a state situation, then we get into the application of the Constitution and the application of due process, and so on, and so those are subject to challenge whereas private employers are, unless they're discriminatory, frankly can set their own standards."

We should know more on Friday. That's when the next court hearing is scheduled to take place.

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